One of the big political issues in Kenya, especially for young people, is that government is dominated by the elderly. True, it happens in other countries as well, but it is only Kenya that has pulled a 91-year old out of retirement to serve on a board dedicated to sport, arts and social development.
President Uhuru Kenyatta was strong criticised for that decision: the elderly appointee had no experience in sports and was way too old for the job, critics said. But Kenyatta was quite unrepentant about the appointment of Moody Awori, a former vice president of Kenya, as a member of a body intended to oversee the growth of sport among young people. He told his critics: Awori would make sure that money of the sports fund board was not stolen.
Protect your money
‘If you see how young people we have trusted with positions steal public money, it is rather I appoint somebody like Awori whom I am sure will protect your money to ensure intended developments and services.’
During October 2019 the Kenyan authorities made another highly disputed appointment, this time of Mary Wambui Munene, a retired MP. Her job was to chair the country’s national employment authority (NEA), supposed to help young people find jobs.
In the wake of Wambui’s appointment just over three months ago, Kenya’s social media was alive with criticism. How could an older, one-term MP, already retired from office, be brought out of mothballs to head up such a crucial body?
Wambui was already a contentious figure, because of her claim to have been married to former Kenyan president, Mwai Kibaki. Even her exact age appears to be something of a secret. Critics say she must be ‘around 70’ - far too old for someone who has to manage job creation for the young, a position that requires great enthusiasm and energy.
In response to appointments like these, young MPs are now pushing for legislation to ‘stop the recycling of older people’ and make space for younger Kenyans who battle to find employment.
Ironically, however, while Kenyatta justifies such appointments as a means to fight corruption and ensure clean government, the appointment of Wambui has just been successfully challenged in court on the grounds that due process was not followed in awarding her the job.
Two high court petitions questioned the validity of Wambui’s appointment, one brought by the Kenya Young Parliamentarians Association and the other by an NGO aimed at creating an ‘enabling environment for women and youth’ in Kenya. They were heard together by Judge Onesmus Makau of the high court in Nairobi.
The NEA Act requires at least seven years’ experience in human resource management, and the Institute of Human Resource Management, admitted to the litigation as an ‘interested party’, said Wambui had never been a member. According to the institute, Wambui was not a human resource management professional which, according to the institute’s reading of the NEA Act, was a pre-requisite for someone chairing the NEA.
On the other hand, the state law office said that though at least seven years’ experience in HR management was needed, nothing was said in the law about the actual qualifications that would be required. Wambui was ‘an experienced, dedicated and passionate entrepreneur’ who had worked with corporate organisations, as well as non-profit and government agencies involved in social welfare and social justice. Allegations that she was not qualified in terms of the NEA Act were without any merit.
True, the institute had told the judge that Wambui was ‘definitely not a human resource professional’ under the Human Resource Management Professionals Act. But was it possible that she nevertheless had the required experience, as the government’s lawyers argued?
Judge Makau said that having carefully studied her CV he found ‘no iota of evidence’ that she had any HR management experience. The roles she had undertaken, as shown in her CV, could not be interpreted as being the equivalent of HR management experience. ‘There is nothing to show that she has ever held managerial and operative functions of HR management anywhere, for seven years.’
While her personal integrity was not up for debate, her competence and suitability for appointment ‘is indeed questionable’.
Counsel for the government argued that Wambui was merely a ‘ceremonial steward’ of the NEA and urged that, as such, she should keep the appointment. The judge was unimpressed with this argument. ‘As chairperson (she) is not expected to be a flower-girl in the NEA, but the person to provide leadership to the board … to ensure that it achieves its functions.’
Judge Makau added that Kenya’s new constitutional dispensation required that ‘value for taxpayers’ money be guaranteed through meeting of thresholds’ before anyone was appointed to public office. Thus no one should be appointed to public positions who could not meet government’s legitimate purpose in establishing those positions.
What about the actual process of her appointment?
The NEA’s chair should be recruited through a fair, open, competitive, merit-based and inclusive recruitment process, said the petitioners. But even though the names of the shortlisted candidates had been requested, the government had declined to provide the names.
The judge said the court ought to be able to scrutinise the list of candidates to verify that the recruitment process complied with the constitution. But since government refused to disclose the names of the others, the court had to find that the relevant cabinet secretary had not proved that Wambui’s appointment had been competitive.
It was thus ‘flawed’ and unconstitutional.
He declared that Wambui did not have the required qualifications and experience for appointment to the position of chairperson of the NEA board and she was therefore unfit to serve in that capacity.
Her appointment was declared ‘unconstitutional, unlawful, irregular, null and void’. The way she had been ‘handpicked’ without the proper requirements for public service appointments being followed was equally unconstitutional and the Gazette Notice of her purported appointment was set aside by Judge Makaue.
He also issued a permanent injunction restraining Wambui from assuming office as the NEA chair, and the government was ordered to make sure than any future appointments to the position ‘strictly adhered’ to the applicable procedures.
Since the judgment was delivered just last month, it is far too soon to predict who will follow Wambui as chairperson of the NEA board – and, more specifically, quite how old that replacement will be.